Podcast Interview: Catherine Michael, Attorney at Law & Author

Catherine Michael, attorney & author

On November 4, 2020, I interviewed attorney and author, Catherine Michael, of Connell, Michael, Kerr, LLP, a special education law practice with offices in Indiana and Texas (https://cmklawfirm.com). Catherine’s book, The Exceptional Parent’s Guide to Special Education, will become available on December 1, 2020 and can be pre-ordered at https://amzn.to/38euWaD.

The following is the transcript from the interview (transcribed using Otter):

Anne Zachry 00:00

First of all, thank you so much for being on this podcast with me, I don’t get to interview folks very often, and it’s always fun when I get to. And it’s always very informative, because I think having all of us who do this kind of work, you know, talking these things through out loud, and just speaking to what’s going on and how we think that’s going to affect the the students that we work for, and the families that depend on us, I just think it’s a really constructive use of time. So I really appreciate you being here. If you could, just introduce yourself and give us just your background, your history of how you’ve come into this line of work and what it is that you do now.

Catherine Michael 00:33

Oh, yeah, absolutely. So, my name is Catherine Michael. I’m the managing partner of a law firm called Connell Michael Kerr. And we work in a multitude of states and have attorneys licensed in in several states as well. And what I do is, and for the past 20 years, I’ve worked in education, law or representation of children. And, and a lot of that involves filing educational due process cases against schools, personal injury, tort actions against schools, and sometimes group homes, residential facilities, and also advocating for children with special needs, for instance, the legislatures in several states, and at a national level. And, you know, I got into this line of work. My background had been in hospital risk management. And I got into this, because we were seeing a lot of children who had really substantial issues, whether they had a diagnosis of cancer, and we’re now getting cranial radiation or having a tumor removed. And we saw how uncooperative schools were. And back then it was really quite shocking to me that we would find a school district who wouldn’t want to provide a child a homebound program or a school district that would claim that cancer is not a disability, and this child doesn’t need to be eligible.

Anne Zachry 01:51

Oh, my gosh!

Catherine Michael 01:52

That was really – Right! That was really fascinating to me, because as someone who had not worked in education, at that point, and was working with hospital systems, that was really shocking, because I think all of us believe that our procedures, tools are supposed to be very pro child, they are there to ensure educational services for children. And, you know, the first case I took was a child who had cancer, and was just really, really surprised how hard it was to get that young man a program. And thereafter started taking cases involving children who had learning disabilities, and really finding how substantial a need this was. And it had a snowball effect and has kept me in it to this day.

Anne Zachry 02:36

Well, yeah. And a lot of us come into this, who are professionals from these paths where we encounter these challenges. And we’re like, “Wait a minute, what?” And then we see how the system is constructed, how it’s been designed, and what the rules actually are. And so I would imagine coming from a medical scenario, I mean, in the medical realm, you bought insurance billing rules, and all those kinds of things until there’s somewhat of a similarity in that you’ve got this compliance standard that has to be met, in order for things to happen. And when you look at what those rules are in special education, and, you know, and you understand what the intent may have been. But then, and you and I spoke briefly of this before we started the interview, that enforcement is really the question here. So if you could speak about that, that would be …

Catherine Michael 03:29

Yeah, enforcement is a huge issue. And I think that because there is so little enforcement of the laws on the books, we’ve have found that basically schools have run amok. And so for parents who are listening, the main law is the Individuals with Disabilities Education Act, and that is a federal law, which means that every state has to follow it. They can’t have a state law that restricts any of the rights under a federal law. And every state in the United States has basically what we call “codified” that law into their own state laws, the only thing that they can do is add additional rights for parents. For instance, the state of Michigan actually extended how long the student can be in special ed. So it is age 22 under the federal law. Michigan made it 26. Other states change, for instance, when a parent requests an independent educational evaluation. California, basically has that if a parent request an independent educational evaluation, that the school gets a reasonable time to respond. Other states like Indiana say a school has to respond within 10 days. So there’s some of these minor changes in the law that are that are supposed to in some states like Indiana or Michigan, give those parents additional rights. But also the way these laws are designed, is that the only enforcers of them are parents. That means the parents are basically their own private attorneys general; that parents are the equivalent of the cops on the road with the radar to catch the speeding cars. Your State Department of Education is not going to be looking over your child’s IEP and saying, “Wow, your child has a lot of issues and they only have one goal,” or “They’re not receiving any direct speech services,” or “They’re not receiving any direct special educational services,” or “Your child shouldn’t be in a special education room all day long; that there’s something called the ‘least restrictive environment,’ which says we need, to the maximum extent we can, have them with their general education peers.’ So what I think a lot of parents don’t realize is, your State Department of Education isn’t doing that. Your federal Department of Education isn’t doing that. No one has that obligation to enforce these laws, other than the parent bringing a private action called an educational due process complaint. So schools have all of these laws under IDEA. And just to give, you know, for parent, I’m sure if if you’re listening to this podcast, you probably have a basic overview of it. But IDEA has requirements for what’s called a free appropriate education. And that basically encompasses that your child is going to have an IEP, that has challenging ambitious goals, in light of their circumstances, that has related services. Related services would be counseling, social work services, parent training, speech therapy, occupational therapy, physical therapy. The least restrictive environment: That if your child needs a one on one aide in order to be in a general education environment, they’re supposed to do that versus moving your child to a resource room. If your child needs a therapeutic day placement or residential placement, that’s also to be provided by the school. There are all sorts of procedural safeguards. If a school refuses your request, let’s say for a one on one aide, or a specialized program for dyslexia, they actually have to provide you written notice saying what data they’re relying upon to deny this, everything they’ve considered, and they have to provide this to you in writing. So there are all these laws on the books, okay. And regardless of where you live, when we say IDEA, it’s that federal law, this applies to you, and it applies to your child in a public school. And as you know, going back again, but the only enforcer of this law, the only enforcer who can actually call a school to tap on it is you as a parent and that mechanism, as I said a second ago, it’s what’s called an educational due process complaint. And that’s a complaint that is filed with your State Department of Education, a state appoints a hearing officer to determine if that program is in place. And you know, something we discussed before we started as well is that most parents have no idea that they have these rights. And that most of these laws are right now not being enforced. There are some states where there is less than one due process case a year. So when schools are developing these IEPs, being that there’s no real enforcement mechanism, other than in some states like the timeline, they have to have it a yearly meeting, we’re seeing really horrible consequences of that, I think across the states.

Anne Zachry 08:27

Well and then now that with school closures and shutdowns, that certainly hasn’t improved things at all. And so what are you seeing?

Catherine Michael 08:36

It hasn’t.

Anne Zachry 08:36

What are you seeing now, that’s different than before the shutdown started?

Catherine Michael 08:40

I think the biggest problem I’m seeing is a complete lack of services. And that is where school districts, for instance, that have gone entirely virtual, have students who are just not able to access the services, they may be so cognitively impaired, they’re not able to do a computer program

Anne Zachry 09:01

Right.

Catherine Michael 09:01

In some of those cases, I’m seeing schools basically just throw up their hands and say, “Well, you know, when we come up with a program, we’ll let you know.” And that’s really contrary to law. And there are a lot of things that parents need to be doing right now. That is one of the biggest problems. The other one is where parents whose children are getting, for instance, speech therapy. The school’s saying, “Sorry, we can’t provide that right now.” And in fact, they really can. I mean, virtual speech therapy has been done for years and it’s something that should be being done.

Anne Zachry 09:35

Right.

Catherine Michael 09:36

And then lastly, I mean, we’re seeing schools where kids are coming back to school, but we’ll have a school that that, you know, I think for good reason has a mask mandate, but they don’t understand that there are clearly going to be children who cannot wear masks, right?

Anne Zachry 09:52

Right.

Catherine Michael 09:52

They are too cognitively impaired or they have really significant health issues. And I’ve definitely seen a lot of those issues crop up, which is really quite shocking to me. Because some of these situations, you know, quite honestly, when we look at a child who for instance, has a tube down their throat, the fact that a school would even argue with a parent as to whether they’re going to try and put a mask on this child is shocking.

Anne Zachry 10:21

Right.

Catherine Michael 10:21

They’ll tell a parent that a child can’t come to school. So that I think has been another one of the really big issues.

Anne Zachry 10:28

Yeah. And we’ve what we’ve run into out here in California is it’s hit or miss, it depends on the school district as to whether they’re going to do the right thing or not. And but we have some school districts that are just flat out refusing to do any in-person services at all, under any circumstances, even though we have the governor’s order that came out in April that said that any student that required in-person services in order to continue to learn and to receive educational benefits, just as a matter of FAPE, that those in-person services still had to be provided and the people who would do it would be considered essential infrastructure workers. But we have districts saying that, “Oh, no, there’s something else that came out in July that says we don’t have to do that.” And it doesn’t say that at all. And so they’re just waiting until they get court ordered to actually do it before they’ll comply. They’re waiting for somebody to pull that trigger. They’re not willing to assume the risk. It’s a risk management decision. They don’t want to assume the liability of choosing to do it, and then have somebody gets sick and say, “You made me go to work, and then then I got COVID.” And then they’re going to turn around and sue the school district as the employer. And so what we’re seeing is that a lot of it has to do with human resources issues, and unionized employees and, you know, rightfully insisting on safe ways of getting things done, and satisfaction not being achieved at that level, which then impairs the system’s ability to carry out its mandate, because the workers it relies upon, there’s no agreement as to how they’re going to do it. Until they get court ordered, they’re just not gonna. And so that’s what we’re seeing out here. And it’s weird. And I’ve also got OCR complaints and state compliance complaints as well pending because the due process system is now so flooded that, you know, the attorneys I work with can’t file anything new until March. And so it’s like, Okay, well, we got to find other avenues to still somehow enforce all of this and a compliance investigation, or an OCR investigation has a 60 day timeline. So at least that’s something.

Catherine Michael 12:27

Yeah, well, and I think that is, again, part of the big problem, here. It’s just when we have schools that they know that the consequences to them are going to be really minimal, that’s why we’ll often see them wait for court orders versus getting creative. So when I say getting creative, we’re seeing two are not able to serve, for instance, cognitively impaired kids, they have problems where they are not able to get the personnel in and not keep them safe. They can actually pay for a private therapeutic day placement, they can offer a parent sort of what we would call a continuum of services and placements …

Anne Zachry 13:02

Right.

Catherine Michael 13:03

… which is one of the requirements of federal law. And they can actually say to a parent, look, we do not have the infrastructure right now, or we don’t have the ability to serve this child, here are four or five private placements that we can contract with, if that’s something you’re interested in. So and we see that happen in some places, and we don’t see it happen in others.

Anne Zachry 13:22

We’re seeing that also with non-public agencies being able to provide in-home services like behavioral services.

Catherine Michael 13:28

Yeah.

Anne Zachry 13:28

Yeah, same thing.

Catherine Michael 13:30

Yeah, I’m actually a big fan of that happening. When I see school districts that are really willing to think outside of the box to say, “Well, we have an absolute obligation to serve these kids. How do we do it?” Right? Where they’re actually looking at it more along the lines of: “This is our job, this is our role, how do we perform it, even if we don’t have the personnel right now?”

Anne Zachry 13:52

Right.

Catherine Michael 13:52

And so when I, certainly when I see school districts going above and beyond like that, and situations where, you know, you can see how difficult it is. I mean, I’m looking at those districts and saying, you know, at least they’re making these attempts, but, you know, the, the problem we see over much of the country is school districts basically saying if a parent, if, after all this is done, brings a due process, our worst case scenario is we’re just going to have to provide compensatory education. So I’m seeing some school districts, really, you know, as I said a moment ago, not provide anything.

Anne Zachry 14:29

Right.

Catherine Michael 14:29

And so, you know, if you’re a parent who’s listening to this, and you’re saying, you know, my school district may be providing part of the program, or not any of it. I mean, the thing you need to be doing right now is documenting it.

Anne Zachry 14:41

Yes!

Catherine Michael 14:42

Because you are absolutely going to have a claim for those compensatory hours that your child should have been getting. So if your IEP had your child receiving 124 minutes a week of what we would call sort of direct special educational services like we would expect to see it you’re talking about a child with a specific learning disability, who is getting some of that one on one reading intervention or math intervention, those are the minutes that are going to be ordered. If you have a situation where your child’s not receiving that, or they were in a resource room, and we’re talking about full time special ed placement, they’re not able to access a computer, what you’re going to want to do is just really document those hours that you’re missing. Email the school, your child’s school, and ask, you know, again, if your child’s not receiving anything, what options are available? You know, if they don’t have the infrastructure, are they going to offer a private therapeutic day placement or a home based placement at this point? And that’s, you know, sending it for instance, a registered behavior technician, or if your child has autism, a BCBA, or you know, another individual who’s trained in that, you know, behavior modification into the home to work on the child’s behavioral goals, social skills goals, academic goals. What is the school able to do at this point? And you’re certainly going to want to ask those questions. And you’re going to want to push because, again, it’s their absolute duty to be providing this right now. To the extent that they are unable, there are rural areas where, you know, there are no ABA centers are out there …

Anne Zachry 16:14

Right.

Catherine Michael 16:15

… no spec ial day placements, there are no private placements, quite honestly. And we have schools that are saying, you know, “We don’t have enough staff,” you know? It’s really a very, very problematic situation for families in those places. And that’s where the parent just really needs to be documenting to the best extent they can you know, what skills their child is losing how many minutes that their child isn’t receiving, what they’re doing, any costs that they are right now incurring. Like for instance, for parents who are having to go out and buy educational items, these are all things that you’re going to want to keep track of as a parent so that as things return to normal, you can sit down initially with your school at an IEP meeting and say, we need to plan for the compensatory services, number one. Number two, here are the costs that I had to privately pay that I’m asking to be reimbursed for,

Anne Zachry 17:05

Right! Well, and I don’t know how other states are doing it, but in California, one of the things that we had a Senate bill pass over the summer, that now requires all IEPs to have a contingency plan and emergency plan for his schools shut down for emergency reasons for 10 or more days. And so now, and hindsight being 2020, obviously, that should something else ever arise, like another pandemic, or whatever that would, or, you know, a natural disaster that would require a school closure for 10 or more days, that there is already a backup plan of what to do for each kid …

Catherine Michael 17:40

Yes.

Anne Zachry 17:40

… on IEP. And so I don’t know that other states have codified anything like that. But California has. And I think that’s very valuable. And the same body of law that produced that I believe, also produced a requirement that there’s going to have to be an analysis of how much compensatory education every special ed kid in California is due, because it’s assumed that everybody will have suffered in some kind of way, and that everybody will have …

Catherine Michael 18:04

Yeah.

Anne Zachry 18:04

… lost services. And so it’s, the IEP teams are now legally beholden to calculate that, once things, you know, once the shutdown is over. That …

Catherine Michael 18:12

Yeah.

Anne Zachry 18:12

… varies from community to community. And I, we now have like, I’m in Ventura County, where districts are not intending to open until January, at the soonest. And then you know, you go down into other counties, and they’ve already got campuses partially opened down in Orange County. And so and some campuses are reopening for their most severely impacted students who desperately need that in-person support. And so the families have to sign all kinds of waivers and everything, but then they can go back and they’ve got all of these empty classrooms that they can spread everybody out. Because not it’s just a small number of students. And then those kids can get that individualized support. But that is like, you know, how much of this was working on social skills? And if they’re all spread apart, can we really do that? You know, and so it’s, it’s still the challenge of how do we work on the goals. And what I’ve seen too, is some kind of distance learning program where, you know, the parents are expected to be the one-on-one aide and help their students login. And they do some kind of something on the internet, but it doesn’t have anything to do with anybody’s goals. It’s just something to do. It’s just to give them a sense of routine in the absence of, you know, an actual plan, and then they get very confused. And then eventually, the goals get worked in because enough people you know, make a fuss about it, then it starts to happen. And now you switched everything up on them again. Now, the instruction is a whole new novel experience, and you’re transitioning them again, into something new that is unfamiliar. And so it just seems to me that it’s very disruptive. And it’s disheartening to see that there’s this little coordination. I mean, as many milestones have been achieved, and as many things that have been accomplished with making some of the system work, this piece of it falling down is a real disappointment, you know? And …

Catherine Michael 19:53

Yeah!

Anne Zachry 19:53

… and it’s disheartening, but I think that parents need to know that there are people like you and me out there who understand it, and we’re trying to fight it, we’re trying to help them. And it’s not a lost cause; that there is help out there. If you could share about your practice, once again, that would be very helpful.

Catherine Michael 20:12

Yeah, so my law firm is Connell, Michael, Kerr, and I am licensed in Michigan, Indiana, and Texas. And our website is www.cmklawfirm.com, and I also have recently, and I believe it’s due out either in December or January, I’m not sure on the date. But I do know that we’re having pre-orders. That’s the Exceptional Parent’s Guide to Special Education, where I basically have, you know, put all of my advice on how parents should navigate this system in one place. Everything that I go over with parents in consultations, how the process works, I’ve put that together and created that as a book. And so that will be due out, again, it’s either in December or January, but parents can get it through Amazon, Kindle, I believe Barnes and Noble, a couple of the others. But I know that should be available shortly. And I’ll send a link for that as well. (Note: It will become available on December 1, 2020, at https://amzn.to/38euWaD.)

Anne Zachry 21:08

Very cool. Yeah, we’ll include the link with our post so that people can access that. That’s a good thing to know.

Catherine Michael 21:14

Yeah. Because I, you know, I think the thing that parents need to remember is that they actually have power. When, you know, when I use the term, private attorney general, that parents are basically acting as though, you know, that is the main message I want to impart to families is that most accountability is going to come from families standing up together and saying,”No, we are entitled to appropriate services for our children,” and doing their research and coming to unders tand the system and asking for the things they’re supposed to be getting.

Anne Zachry 21:47

Right.

Catherine Michael 21:47

And it’s only by asking for it, and schools really being held accountable that we’re going going to see the system change. And I think a lot of parents, right, and this is all of us, right? It’s difficult to challenge people that we want to like us and parents often want the teachers to like them, they want school staff to like them. And most people who go into teaching are very, very good people, but they’re not taught the education laws, they’re not …

Anne Zachry 22:11

Exactly.

Catherine Michael 22:12

… in a lot of situations, we find, you know, teachers don’t know how to design the school for an IEP, they don’t … You know, I had a teacher in a due process hearing last week, they they didn’t know that parent training, or counseling could even be part of an IEP. So it’s really important for parents to take the horse by the reins, and learn how to navigate the system and start asking these things in a way that’s diplomatic and kind. But at the same time is assertive enough that your child is going to get what they need, because quite honestly, you are your child’s only advocate in the system.

Anne Zachry 22:48

Right.

Catherine Michael 22:48

And unless you’re asking for these things, the schools simply aren’t going to provide them. And in many, many situations,

Anne Zachry 22:55

it’s just a sad reality of it. But I mean, this also goes to the fact that in a democracy, we’re of the people, for the people, and by the people, and the parents are the people, the students are the people and we shouldn’t be afraid to take ownership of that responsibility. It’s what we all agreed we wanted to live under. That’s …

Catherine Michael 23:13

Yeah.

Anne Zachry 23:13

… the model we’ve chosen. And so I think, for me, what makes me upset most about the way it’s designed, it’s not just that it forces parents into litigation, because that’s what the rules require, in order to resolve the dispute. It’s the attitude that parents get from the school district personnel when they actually exercise that right. And the “How dare you?” and “Oh, you think you’re …” you know, whatever. And all of a sudden, the parent becomes the bad guy for simply exercising a right and following the rules, because that’s the only mechanism available to them, not because they want to. Nobody wants to do that. But if they do, you know, as someone who works with families, if somebody comes to me and says, “I cannot wait to go to court,” I’m like, “Well, okay, I hope you find somebody to help you with that, because it’s not going to be me,” You know, it’s that you shouldn’t be eager to go to court. It should be the last resort. And so when parents are forced into that corner, and that’s the only option they have left, and they exercise that right, and then they catch grief for it, like somehow they’re the bad guy, I think that’s what bothers me the most. Because it’s like you …

Catherine Michael 24:18

Yeah.

Anne Zachry 24:18

… said, you know, that the parents can be made out as, “Oh, they’re just this this disgruntled person and they just aren’t happy with anything. They’re sad about being the parent of a special needs child.” I’ve heard that one a lot. “They’re having a hard time coping and they they’re angry and they need someone to take it out on, so they’re suing the school district.” No, you broke the law and you harmed their child. That’s why they’re suing you. You know, it’s frustrating.

Catherine Michael 24:46

Yeah, and, to that end, like, I want, you know, schools as well as parents to I you know, I would so love if we could even stop thinking of due process as litigation or suing or something like that, because these parents cannot get damages under IDEA claims.

Anne Zachry 25:04

Exactly.

Catherine Michael 25:05

What you can get, right? You can recover your attorneys fees. But in these cases, I mean, if we look at them in their most simplistic nature, it’s simply the parents asking their state Department of Education to appoint an independent hearing officer to make a decision as to the appropriateness of their child’s program.

Anne Zachry 25:23

Right.

Catherine Michael 25:23

A parent doesn’t need, although I certainly wouldn’t recommend it, but a parent doesn’t need an attorney. So, you know, I will often hear from schools that, you know, this is the litigious parent who filed a suit. And I’m thinking, number one, this person hasn’t filed a suit against you. Right? A suit, you know, traditionally is a claim we would file in civil or federal court.

Anne Zachry 25:46

Right.

Catherine Michael 25:47

This is an administrative action that they filed with an administrative agency. It’s not even … so, and then we hear, you know, “a litigious parent.” Parent’s not asking for money, you know. They may be asking for what we call an “in lieu of FAPE” type of agreement where they can actually get the funds to place their child in an appropriate program.

Anne Zachry 26:05

Right.

Catherine Michael 26:06

But I think that is a mindset that we really need to have get schools over and also get parents again, thinking that if you have a problem with Social Security, or you had a problem with your child’s Medicaid, you file an administrative action to get that corrected. Right? You file with, you know, your federal Social Security office, “Here, I need to get this adjudicated,” or somebody who’s disabled. We don’t think about it the same way.

Anne Zachry 26:31

No, not at all.

Catherine Michael 26:32

I think if we could … right? And so to me, that has always been fascinating as somebody who does this, when, you know, I have one that’s in a hearing right now, where the, you know, the parents, quite honestly only asking for an appropriate IEP, and then assorted related services for her child. And now, you know, when the school’s attorney is speaking to us, they’re saying, you know, this is simply a litigious parent. And I’m thinking, you know, she’s not asking for a dollar.

Anne Zachry 27:00

Right.

Catherine Michael 27:00

Just write an appropriate program. So I really want to even reframe how parents think about these things. Again, schools are basically performing a government function.

Anne Zachry 27:14

Yep.

Catherine Michael 27:14

When we ask for the enforcement of these laws, it’s an administrative action. And you’re asking, you know, someone from your state simply to make that decision. Certainly, they can be appealed to federal court. And there’s all you know, all of the things that you and I often see.

Anne Zachry 27:31

Yeah. Which Yeah, I’ve gone all the way to the Ninth Circuit on some of these things and it’s just like, “Are you kidding me?” And something that you had said before we got started, as well as that how much money school districts are sometimes willing to throw in attorneys that they would never throw at services, I mean, hundreds of thousands of dollars in legal fees to fight over a $7500 education service.

Catherine Michael 27:50

Yeah. And you know, I’ve even seen that when a parent requests an independent educational evaluation. In most states, those can go for around $3500. Some states that we’re looking at California and New York, it can be higher. So I’ve seen schools go through an entire due process, arguing that their evaluation is appropriate, where they spent triple, quadruple, what it would have cost them to provide the parents the evaluation. And when you look at that, you’re really what you’re seeing is a school district saying, “We want to make this process so hard on parents that they don’t even bother to ask.” And they talk to their friends and they’re like, “Yeah, this is what happened.” And that’s not the role of a government entity, right? We shouldn’t have government entities making it so difficult for individuals to get their, you know, their legal rights met.

Anne Zachry 28:23

Right. Right.

Catherine Michael 28:38

They don’t even want to start that process. And that’s why I think it’s really important for parents to feel empowered, and to realize that what they’re asking for is supposed to already be being provided to their child. And again, it becomes their job to enforce that. And you can do so in a diplomatic way.

Anne Zachry 28:55

Exactly.

Catherine Michael 28:56

There are a lot of you know, yeah. And there are a lot of things you can do even outside of due process. But I don’t want parents to be afraid of due process.

Anne Zachry 29:03

Right.

Catherine Michael 29:03

And, I want to reframe their thinking on that topic.

Anne Zachry 29:07

I think that’s a really healthy perspective. I wish we could reframe the thinking of the folks from the school district who come in and deliberately try to make it toxic in those instances where they do. And you know, when it isn’t always that case, you’re right. I have been in situations where we’ve had to file for due process. And it’s almost one of these things where everybody in the IEP team knows that it was coming, and nobody’s surprised by it. And they’re waiting to see what happens. And it’s almost like the administration is hoping the parent will file because then they can go to the school board and say, “Look, now will you listen to me?” And because, sometimes it’s not that the department doesn’t want to do it, it’s that their hands are tied by, you know, whoever holds the purse strings, who’s not part of the IEP process, even though the team is the one vested with the authority to make those decisions. So, the politics that are going on behind the scenes become a toxifying effect. And …

Catherine Michael 29:59

Right.

Anne Zachry 29:59

… then you Have the attorneys that these individuals will hire and certain individuals, you know, birds of a feather flock together, and you’ll find people who are like minded in their view of these things. And I know that for from what I’ve seen the socioeconomic status of the community where the school district is, can have an influence over whether they will comply or not. In a school district where they don’t have the money to throw at lawyers, they’ll go ahead and pay for the service, they’re not going to fight over it …

Catherine Michael 30:27

Yeah.

Anne Zachry 30:27

… because they can’t afford to. But you get into an affluent community, especially when you’re talking Southern California where you got these little pockets of nouveau riche and their big McMansions. And they’re feeling all special because they have money and the school district people will tell them, “Oh, well, you don’t want to go through public special education services. That’s like a welfare service. You would do much better if you pay privately for the services yourself. You’ll get much better results than what we can give you because ours is publicly funded.” And so they play that …

Catherine Michael 30:58

Yeah.

Anne Zachry 30:58

… that mind trip on these wealthy parents whose identities are all wrapped up in their their newly accomplished wealth, and they play on that and these parents are taken for a ride, because then these parents are paying out of pocket hundreds of thousands of dollars for all of these specialists who were hovering, like vultures just waiting because they know it’s coming. So you’ve got, you know, you’ve got all of these parties that are financially invested in enabling that mechanism to play out the way that it does. And then you have parents who suddenly realize after, you know, they’ve broken the bank, and they don’t have all that money anymore, because it went all to private school and residential placement costs and things and to come to find out that they could have gotten all of that from the school district. But there’s …

Catherine Michael 31:40

Yeah.

Anne Zachry 31:40

… only a two year statute of limitations and they’ve been paying out of pocket for the last 10 years. And so not until they’re bankrupted by it that they realize the error in their judgment, and then they can’t go back and fully recover. And it just there’s all of these different games being played by people who seem to be similarly motivated to not serve, while taking public dollars to hold a public service position. And I think that this is as much a taxpayer issue as it is a parent issue, because like you said, we’ve already paid for these services to be provided. Those are our tax dollars. And in those are the laws that our Representatives passed in order to provide for these children. And yet, this is what we have instead. And so I think …

Catherine Michael 32:22

Yeah.

Anne Zachry 32:22

… that one of the parent advocates that I met a few years ago said she went up to Sacramento with a group of parents and sat down with state assembly members or state Senate, I’m not sure who all she met with. It was state officials, representatives. And said, you know, “When you take into account all of the people in California who have disabilities, and their immediate family members, like their parents, or you know, a spouse, do you consider them a constituency?” And he said, “No, the number is too small.” And she said, “Well, okay, what about all the people who are employed to support all of these people with disabilities and their families and their extended families? When you add all those people in, does that become a constituency to you?” And he said, “Yes …”

Catherine Michael 33:08

Yeah.

Anne Zachry 33:08

“… at that point, now you’re talking about a significant number of people.” And so what that really communicates is all of this divisiveness that we’ve been seeing in our culture where, you know, we’ve got people being pitted against each other for different ways of thinking about things and the things that make them unique from each other. And disability is no stranger to that experience. And what we’re starting to realize is that the people who are trying to divide us are a minority. And they’re easily identified, we all have a common group of individuals who are all trying to pit us against each other and turn us into special interest groups, when really we’re just the majority. And if we all …

Catherine Michael 33:49

Yeah.

Anne Zachry 33:49

… weave ourselves together and collectively advocate for each other, then we’re a constituency. And I think that …

Catherine Michael 33:57

Yeah.

Anne Zachry 33:57

… that is where we have to start thinking about these things now that it’s not, “Oh, my disability rights versus your LGBTQ+ rights.” It’s not my “My race rights versus your gender rights.” You know, it’s not a “versus.” It’s no, everybody. Everybody has equal rights. And that’s the whole point.

Catherine Michael 34:16

Yeah.

Anne Zachry 34:16

And so I think that our dialogue needs to shift in that direction. I know that I had this conversation in an IEP meeting the other day with a team, I had to file an OCR complaint. I’m like, “Look, this pandemic is not the apocalypse, you know? Zombies are not at the door.”

Catherine Michael 34:32

Right.

Anne Zachry 34:32

“Democracy has not fallen, the rule of law still applies. And at no point did public health usurp civil rights, they are equally important. So what are you guys gonna do?” And they’re just like “Uhhh!” because they don’t know. I mean, but they understood why I filed a complaint. They weren’t mad at me. They’re probably … they’re actually they’re like waiting to see what comes of it because maybe now they’ll be given permission to do their jobs. You know?

Catherine Michael 34:56

Right.

Anne Zachry 34:56

Nobody was angry about it. It was like “Okay, well, yeah,. That logically makes sense. We’ll just have to see what happens.” And so I’m not necessarily, in my situations … and of course, I have relationships with a lot of these people, because I see the same people in IEP meetings for different kids over the span of decades. So we all know each other. So it’s not like …

Catherine Michael 35:17

Yeah.

Anne Zachry 35:17

… you know, I’m going into a novel situation, and then some stranger coming in and telling them what to do. Because that can be, you know, people can become defensive and adversarial when that happens. So I have rapport, but, you know, even still, you know, the fact that I can say something like that, and everybody’s like, “Yeah, you know what, you’re right. We still are not empowered to do what you’re asking us to do.” And so that that, to me, is very frustrating, because I know that there’s people who want to do the right thing, and they can’t; they’re not being allowed to.

Catherine Michael 35:45

Yeah.

Anne Zachry 35:46

And I think that parents need to understand that too, that, you know, not everybody’s the enemy, but you got to be paying real close attention these days. I mean, would you agree, I mean, the parents just need to be …

Catherine Michael 35:56

I would.

Anne Zachry 35:56

… very discerning about who they can trust?

Catherine Michael 35:58

Well, absolutely. I think it’s, again, it’s being discerning. And it’s also it’s being educated as to what your child needs are, what you’re asking for. And then also, you know, again, understanding that you are going to be the only one who really has your child’s true best interests at heart. That’s not to say that there aren’t, you know, within school systems there are really dedicated teachers, dedicated administrators who are doing their very, very best to ensure children are being educated appropriately. But at the end of the day, and I don’t necessarily like that expression, but it really does come down to, you are always going to know your child best. And it is going to be up to you to enforce these laws.

Anne Zachry 36:43

Right.

Catherine Michael 36:43

You know, you may have a great teacher one year and not another. And again, the school’s interest isn’t going to be the same as yours, right? Theirs is going to be on their budgeting, the union, you know, everything going on, your interest is going to be on “Is my child getting an appropriate program?”

Anne Zachry 36:51

Exactly. Right. And, I mean, in terms of checks and balances, that’s why the parents are such an important part of the team, and are afforded so many rights and the protected right to meaningful parent participation and …

Catherine Michael 37:11

Right!

Anne Zachry 37:12

… informed consent. I mean, all of those privileges and rights are there, because that’s meant to be a check and balance against the rest of the system. And so, you know, if they if the parents are being bamboozled, and they are signing documents that they don’t actually understand, then those enforceable rights are not being honored. And, you know, it’s parents have to understand that they have recourse and they need to educate themselves as to what what that is.

Catherine Michael 37:36

Right.

Anne Zachry 37:36

And ask! I mean, my favorite thing is when parents say, “Okay, well, what are my rights under this circumstance?” and put it back on the school people … … to explain what their rights are, you know? And I think that that’s a good strategy, because it is the burden of the school district to explain to parents what their rights are. They’re supposed to be able to do that. And so you know, if they’ve put you the parent on the spot, the parents should feel comfortable saying, “Well, you know, what, I need to turn this around to put you on the spot for a minute, because I don’t understand my right. And I’m not sure what I can do here.” If you’re savvy enough to know, in some states, you know, how the rules play out are different. In California, all you have to do is give 24 hour written notice, minimum, and you can audio record your child’s IEP as a parent. You can’t video record, but you can audio record, and the school district can’t say no, but they also have to record as well so that there’s a backup copy. And you know …

Catherine Michael 37:42

Yes!

Anne Zachry 38:23

… just for authenticity reasons. So different states have different rules about audio recording, but, you know, I audio record every IEP meeting. One, because I have ADHD myself, and I don’t want to miss anything. And so it’s just a … it’s more of a safety net, because I very rarely have to go back and listen for …

Catherine Michael 38:23

Yeah. Yeah.

Anne Zachry 38:38

… my own account. But just to know that I can make me less anxious during the meeting, but also because, you know … … it ends up getting introduced into evidence if we do have to go to a due process hearing. And it’s been a very powerful tool.

Catherine Michael 38:44

Well, yeah. Right. And you can be clear as to what you asked for, why you asked for it, what the school’s response was.

Anne Zachry 38:58

Exactly,

Catherine Michael 38:59

I think that can be extremely helpful.

Anne Zachry 39:01

And if, you know, when you go into an IEP meeting and you do have the, you know, you’ve legally made it okay to audio record – given written notice or whatever is required – and you’re doing it lawfully, and then you go in and say, “I don’t understand my rights under the circumstance, please explain them to me,” and then the explanation they give you is either going to be a good one, or it’s going to be a bad one. And if it’s a bad one … … you know, the backup, you know, it’s like, “Okay, well, I didn’t get the right answer, but I got proof that they don’t know what they’re talking about. And I’m not crazy.” And so it becomes evidence and I think the parents and, certainly as an advocate, when I go into the to the IEP process, I’m trying to solve the problem for real in the moment but I’m also making the record along the way in case it doesn’t get resolved …

Catherine Michael 39:24

Yeah. Right.

Anne Zachry 39:28

… and so that by the time we arrive at due process, the trail … the evidence trail is clear. If when they say no their explanations are, you know, are whatever they are. And, going back to what you had said earlier about prior written notice one of the things that I’ve noticed out here is that I would say, a good third of the time when I get a prior written notice, in response to something I’ve submitted for a family, it won’t make a lick of sense. It will say prior written notice according to 300.503, blah, blah, blah …

Catherine Michael 40:14

Right.

Anne Zachry 40:14

… and have all that legalese at the top of it, and then they … it’s like a form and they’ll populate the form with a bunch of gibberish that’s just nonsense. It doesn’t even explain why they said, “No.” There’s no real explanation. I’m like, “Okay, well go ahead and make the record that this is what you’re sending out on a PWN form, and this is what you’re going to represent as PWN,” … because substantively, it is embarrassing. And just because you put “PWN” at the top, and you cite the code that you’re supposed to be following, the fact that you didn’t is reflected the document itself. And it just, it blows my mind what people will put into writing because they think they’re so clever. And it’s like, “Okay.” And so one of the things that I think is really valuable, that’s helpful for parents to know, too, is that the regulations, it’s 34 CFR section 300.320(a)(4) mandates the application of the peer reviewed research to the design and delivery of special education. When you have a bad IEP, you can say, “I want to understand the science that underpins this IEP. What peer reviewed research did you rely on to inform …”

Catherine Michael 40:34

Yeah.

Anne Zachry 41:20

… you know, and of course, they don’t have anything. And then when I ask for something specific, and I know, I can reasonably anticipate that they’re going to balk at it, because it’s something they’ve not done before. And it’s going to require them to create something new. I will cite the science that backs up the request that I am making and say specifically, the regulations require you to apply the peer reviewed research to the degree that it’s practicable. So if you’re not going to do this, when you send your prior written notice, please explain what it is about the science that is not practicable.

Catherine Michael 41:20

Yeah. Yeah.

Anne Zachry 41:23

And then they’re, they’re stumped, because they don’t know how to reply to that. And again, it goes back to the fact that they don’t actually have access to the peer reviewed research. I’ll go ahead and …

Catherine Michael 42:02

Yeah.

Anne Zachry 42:02

… spend $70 on an article just to make my point, because I can …

Catherine Michael 42:06

Yeah.

Anne Zachry 42:06

… you know, but I shouldn’t have to do that. And that’s the problem, is that we have this paywall between our educators and the science that would tell them what to do. And what is the politics behind that? Why is there a paywall between our educators and the research that will tell them how to teach our kids right? How is that not part of the public domain? Why do teachers not have access to that? And then, especially when you have a legal mandate that requires it, you know?

Catherine Michael 42:31

Oh yeah, and …

Anne Zachry 42:32

It blows my mind.

Catherine Michael 42:34

It goes to the fact that, yeah, that because the laws are not enforced, right? We’re just not seeing, for instance, when we look at health care, right, we have, you know, standards of care, best practices, we see checklists for everything with the doctors getting weekly reports on different new procedures, medications, right? We don’t see that in education, because, again, there’s so little penalty. We’re not seeing teachers, sort of, you know, given a weekly mailer, you know, here are some of the programs that we’re seeing coming out. Here are some of the best practices for working with a specific learning disability, you know, can you update off on how you’re implementing this in your classroom? We don’t see that because, again, there’s so little importance level. Yeah, I really haven’t felt the need to do that.

Anne Zachry 43:23

Yeah, well, and I’m thinking we’re overdue for a reauthorization of the IDEA. And one of the things that I would like to see in there is beefing up of that enforcement arm because they’re supposed to be what 10 year audits or something like that? That we have some kind of audit procedure in California that every once in a while somebody pulls the short straw and ends up getting audited. And of course, every time they go through there and examine all the IEPs, it’s just a disaster, but then nothing ever gets fixed.

Catherine Michael 43:48

Right.

Anne Zachry 43:48

And so it doesn’t change anything. It’s like, Oh, they just documented that it’s a disaster and moved on to the next one. And nothing got rectified. And we need to speak to that. I mean, is we’re looking at all of these broken systems that are just cracked open and expose raw and wide for the whole world to see now that there’s no covering up that our social programs are flawed, and that we need to overhaul them. And we need to bring them kicking and screaming into the 21st century with best practices and not just best practices in teaching, but in best practices in operational standards, and efficiency, and … … and security and privacy. And I know I worked in IT for a few years in these huge enterprise class computing environments like Walmart and Sanyo, and Volkswagen and all of these big huge computing environments, where you have these global wide area networks in these supply chain automated pieces. Back in the day, I’m talking like 25-30 years ago, this technology has been around for a long time. And if you look at the degrees of efficiency, and the cost savings and the reduction in overhead that is experienced by the industries that adopt all of this ISO standards and these automated supply chain things and and the internal and the way they automate their internal business operations, that California is starting to head in that direction with respect to individualized person centered planning. That there is a pilot program that’s being developed. And I don’t know when exactly it’s going to be deployed. But I know Ventura County as part of it, where, whether you’re Department of Rehab, or you’re special ed, or you’re county mental health, or you’re welfare, or you’re food stamps, or you’re Medicaid, or whatever, it’s one individualized plan, one caseworker, and your plan calls out to all the different funding sources. So the consumer is not having to chase after the funding, the funding is following the consumer through a single individualized plan, which is only common sense. But it was only achievable by marrying all of these computer systems together, that all of these disparate agencies were working autonomously with, and making them able to talk to each other. And so now we’re getting to the point where we can stitch all of our our computing resources together to create this inter woven supply chain so that we can streamline how we deliver public services and do it more cost effectively. But then what that also means is that there are no there are no dark shadows to hide in where funds can be misappropriated. There will be such a stringent degree of accountability that the cronyism and the back scratching that has gone on will no longer be enabled. It won’t be possible. And so that also will free up a lot of resources. And that is another aspect of increasing the efficiency and the fiscal responsibility of the system and the fiscal management of it. And so there are people who financially benefit from the system being antiquated and broken right now. And they don’t want those kinds of changes coming in. Because there goes all of their opportunities to exploit. We’re starting to see that public service is going through this transformation that private industry went through when this happened decades ago, as these technologies come in. And as the public pushes for a greater accountability. And as we repair and we overhaul our systems, we’re going to be using the most modern tools we have. And so I think that we can be encouraged that the future does hold a lot of potential for a lot of corrective action, and a lot of prevention of things like this happening again in the future. But we are not there yet. And I think it takes … it’s going to take all of us pushing for those reforms. Because as much as each parent needs to advocate for their child on a child by child basis, and not be afraid of the due process mechanisms, if that’s what it takes, you know, but not think that it’s like, you know, the panacea, like it’s going solve every problem, we also need to be pushing collectively as a community of people for reforms that will fix the system in a way where these are no longer the problems we have to deal with. And that we have to repair the broken system, not only on a kid by kid basis, but we also have to make it better than it was in the first place. And so that the next time catastrophe comes, we’re better prepared to roll with it. I mean, sadly enough, this was long overdue, where the system needed to be confronted on its failures. But I think that parents can take hope that we’re part of history right now we’re part of fixing it, we’re part of making this better for our kids with special needs, because all of its going to have to be reformed, we can’t just tape it back together and go back to the way it was. So I think that …

Catherine Michael 44:23

Yeah. Right.

Anne Zachry 44:54

… you know, there’s, there’s a lot of encouragement in what’s going on here, there’s a lot of opportunity, and we don’t need to be so terrified of the changes that are coming. And we need to really embrace them, because it’s our opportunity to make it better, I think. And it’s going to take people like you and me going in there and one kid at a time, you know, saying, “No, this is … these are the rules, and this is how they apply to this one child. And this is …” ” … the individualized program, and and the individual person matters. You know, it’s like every vote matters, every child matters. And whether that child has a disability or not, should not be a defining criteria of whether that individual matters or not, it shouldn’t even be a question.

Catherine Michael 48:39

Right! Yeah.

Anne Zachry 48:55

And so I think that what we’re doing is a very powerful thing. This is a very prescient area of civil rights law right now. And, you know, I think that, you know, regardless of how things play out with what other people do, what people like you and I are doing, we’re on the right side of history with this, you know? We’re enforcing civil rights. We’re …

Catherine Michael 49:13

Yeah.

Anne Zachry 49:13

… we’re enforcing democracy. It’s we are of the people, for the people by the people doing the work to make sure the people are protected. And I think that families need to understand that they’re not alone, that there are folks like that, like us out there. And we’re not that rare, you know, and the fact that you’re licensed in multiple states goes to the fact that you recognize the degree to which there’s not enough representation in some places, and that you’re making it …

Catherine Michael 49:36

Yeah.

Anne Zachry 49:36

… happen anyway. And so that’s really powerful. I think the parents need to … and I know that there are other attorneys who are licensed in multiple states as well. One of the attorneys I work with here in California is also licensed in Alaska. And let me tell you, going out into the middle of Alaska in the middle of nowhere … … and enforcing special ad law is not an easy thing to do. You’re coming in on a like a bush plane and landing in, you know, somebody field, you know, and going to a one room …

Catherine Michael 49:53

Yeah! Right.

Anne Zachry 50:04

… school house to say,” Okay, this kid needs speech and language. How are you gonna make it happen?” and they still got to do it. And so, you know …

Catherine Michael 50:09

Yeah.

Anne Zachry 50:09

… parents need to understand that even under the most bizarre and difficult circumstances it can be made to happen. There’s always a way.

Catherine Michael 50:17

Right.

Anne Zachry 50:17

You know, and that it’s not a hopeless situation. So I think that talking about this with you has been very enlightening and very encouraging. And I think that you’ve given us a lot of really good information. I do want to remind everybody that I’m going to include a link to your book with all of our, you know, the stuff below on the … because what we’ll do is we we do the podcast, but we also do a corresponding text only post …

Catherine Michael 50:39

Great!

Anne Zachry 50:40

That way, all the links for everything are embedded in the transcript …

Catherine Michael 50:44

Yeah.

Anne Zachry 50:44

… so we’ll have all of that and then …

Catherine Michael 50:47

Oh, that would be fantastic!

Anne Zachry 50:49

Yeah, and that way folks know how to get ahold of you. And this has been a really good discussion, I really appreciate you doing this with me.

Catherine Michael 50:56

You know, you’ve done a great job, as well, at trying to keep parents aware of their rights and helping them feel empowered. And I think that’s the biggest thing that they need to know is that they have a lot of power in their hands. They just need to know that there are lots of us on their side trying to help them along the way.

Anne Zachry 51:13

Right. And it means the world to us to be able to do it. It’s such an honor to be able to be part of making somebody’s life something that you know that they’re they’re happy and they’re fulfilled and they’re not living in misery …

Catherine Michael 51:26

Yes!

Anne Zachry 51:27

… or in crisis, you know, that that we can help people turn those kinds of corners with the kind of work that we do. I mean, it’s an honorable thing that we do and I’m proud of what we do. So thank you, and thank you for doing this and for sharing your information with us and hopefully we’ll get to do something like this with you again soon.

Catherine Michael 51:44

Yeah, I would love it. And thank you again, so much and for all that you do.

Fascist Trends in Special Education Non-Compliance

Photo credit: Gilbert Mercier

“Fascism” is a scary word that is far too often slung as an insult by people actively engaging in it who don’t understand what it actually is. In today’s post/podcast, I want to talk about what fascism actually is and how it shows up in all aspects of public agency functioning, but particularly how to recognize it in special education.

Unfortunately, these days, there are no better angels to appeal to within many public agencies, including public education agencies. It’s not that the entire barrel of apples is spoiled, but enough of it is that the good apples either leave or go bad, too.

Bureaucrats accustomed to gaming the system for their own financial gain at the expense of children with special needs have historically engaged in some pretty unscrupulous behaviors over the years, but they just could not resist the opportunity to exploit the pandemic to advance their self-serving agendas. They’ve become experts at seizing upon opportunities to escape/avoid their job responsibilities while still collecting their government paychecks.

For far too many individuals, employment in public service has become a form of welfare fraud, only public agency employees get more free government money and perks in exchange for nothing than actual welfare recipients, who have to perform for the pennies on the dollar they receive by comparison. In California, for example, the average special education director is paid around $125K per year plus benefits with support administrators each being paid around $100K per year at taxpayer expense, regardless of whether their students receive educational benefits or not.

So, how does that relate to fascism? And why is it such an inflammatory word when it simply describes a frame of thought?

My theory is that either the people who find the terms “fascist” and “fascism” inflammatory are engaging in fascist behaviors and don’t want to be called out on them, or they don’t actually understand what fascism is and that they are actively engaged in it, thereby simply taking it as an insult. So, before we start talking about the fascists that have been employed in local government over the last 100 years, lets first arrive at an understanding of what these terms actually mean.

Before we can talk about what fascism is, we first need to talk about what our democracy is supposed to be. The most basic summary of American democracy is that it is a system governed by the rule of law, which is created by legislators elected to represent the interests of their constituents wherein the majority rules. Being ruled by laws of which no one is above, rather than a dictator or an authoritarian regime, is an essential element of a democracy.

Another essential element of a democracy is the belief that every person, regardless of what makes them unique, is afforded equal rights under the law. The fact that we need laws like the IDEA, Section 504, and the ADA make clear that, if left to their own devices, our public schools cannot be trusted to afford equal rights to their students with special needs. They have to be regulated or they can devolve into little fascist regimes of their own, depending on the communities in which they are located.

The last 29+ years of working in this field has convinced me that even those laws are not enough. Fascists who have been within the system since before these laws were passed made these laws necessary in the first place to ensure that democracy is afforded to every child in the public education system. One of the most historically significant pieces of litigation in IDEA history is PARC v. Pennsylvania, in which it was determined that denying children with disabilities equal access to education is unconstitutional

The fact that our federal government has been kidnapping and locking up babies coming to our borders through the the legal asylum-seeking process with their parents speaks to the degree to which the rights of any child in this country are not honored in general, much less when children have disabilities. Recent feedback from the American Association of Pediatrics has described this conduct as institutionalized “child abuse.”  The American Federation of Teachers has called this conduct “crimes against humanity” (see https://youtu.be/3lMhuv3EXLI).

A government that disregards child welfare at all, much less to this degree is monstrous, hence today’s discussion of fascism.

fascism
[ˈfaSHˌizəm]

 
NOUN
fascism (noun)
  1. an authoritarian and nationalistic right-wing system of government and social organization.
    synonyms:
    authoritarianism · totalitarianism · dictatorship · despotism · autocracy · absolute rule · Nazism · rightism · militarism · nationalism · xenophobia · racism · anti-Semitism · chauvinism · jingoism · isolationism · neo-fascism · neo-Nazism · corporativism · corporatism · Hitlerism · Francoism · Falangism
    antonyms:

Source:  https://www.bing.com/search?q=fascism

So, basically, anything undemocratic is fascism. Denying children with disabilities equal access to education has already been determined to be unconstitutional. If it’s unconstitutional, is undemocratic. If it’s undemocratic, it’s fascist. Ergo, denying children with disabilities equal access to education is fascist.

Nazis are fascists. They do not believe that all people have equal rights and individuals with disabilities top their list of people who don’t deserve to live, much less be given equal access to anything. All fascism includes biases against other humans on the bases of observable physical traits and/or behaviors.

In Hitler’s Germany, it was the medical community that turned its back on individuals with disabilities, using science without ethics to justify mass killings and inhumane experimentation that were legitimized as “medical procedures.” After Hitler purged the country of somewhere between 6,000 and 7,000 Jewish doctors, more than 7% of all remaining German medical doctors joined the Nazi party, a much higher percentage than in the general population at that time. By 1942, more than half of Germany’s medical doctors and professionals with PhDs in related fields had joined the Nazi party.

Doctors working for Hitler’s Nazi State rather than patient welfare then embarked upon many of the most unethical human experiments conducted in modern history. Using Mendelian genetics to guide their decision-making processes, they saw extermination as the correct solution for developmental disabilities like Autism and Down’s Syndrome, which they regarded as genetic defects. This abandonment of the Hippocratic Oath to do no harm facilitated the Holocaust.

Murder and dismemberment in the name of science were visited upon every class of individuals captured by the Nazis, including people with disabilities, during the Holocaust. At the time, there were no international laws governing the behaviors of doctors. After the war, following the Nuremberg Trials, the Nuremberg Code was created in 1947, which established a set of research ethics for human experimentation.

In the early 1970s, when the special education and related civil rights laws were created, these ethical standards had long been established as a matter of law, but not necessarily common practice. The concept clearly did not generalize from the medical community to the education community, and much hell has been raised by school district officials and their lawyers about public education agencies not being liable for educational malpractice.

In my opinion, educational malpractice should be a criminal offense, complete with jail time and fines. Acts of unconstitutional conduct carried out under the color of public office cannot be tolerated in our democracy, whether we’re talking about extrajudicial killings by police or denials of a Free and Appropriate Public Education (FAPE) as a result of malice and/or neglect.

These laws only became necessary, and were finally enacted in the 1970s, because the intrinsic educational and civil rights of children with disabilities were being denied all over the United States. Professional ethical standards alone were not enough to protect students with special needs. Just as with the Nazi doctors and the Nuremberg Code, laws had to be created after the fact to hold people accountable for their unethical treatment of individuals with disabilities, including school-aged children, here in the United States.

The laws that protect students with disabilities have always been difficult to enforce. In no small part, this is because the fascists already employed within the public education system who viewed children with disabilities as second class citizens continued to undermine these laws from within their public education agencies after these laws passed.

As a more visible example of what I’m talking about, consider one of the most famous “Karens” in our social awareness, Kim Davis of Broward County, Kentucky. While she got elected to serve the public, taking an oath to abide by the rule of law and fully knowing that the Constitution requires a separation of church and state, she refused to issue marriage licenses to same-sex couples following the landmark federal lawsuit Obergefell v. Hodges, because her religious beliefs require her to engage in discrimination on the basis of sexual orientation.

This is fascism. She denied equal Constitutional rights under the law, refused to abide by the rule of law, and abandoned the separation of church and state in favor of her religious beliefs, which clearly do not align with the Constitution or democracy in general. She then claimed that she was being persecuted for her religion when she was put in jail for refusing to do her government job according to the rule of law.

This kind of behavior has been going on since the laws that protect children with disabilities were passed in the 1970s through to today. And, now, we have the consequences of this pandemic impacting an already unconstitutionally dysfunctional system and exposing all of its flaws for the whole world to see.

The thing about hard times is it quickly reveals who the fascists are. They are the ones advocating for a return to the previous status quo in which they were the beneficiaries of inequities while actively denying the existence of the obvious inequities in our publicly funded systems.

It has become the norm that agencies created by our democratic rule of law and funded with taxpayer dollars routinely violate those laws and misappropriate those dollars at the expense of the very constituents these agencies were created and funded by the taxpayers to serve. This has to stop or democracy is truly dead in this country.

Such is often the case in special education, just as a matter of routine. But, now this pandemic has really shown everyone’s true colors and there is little that is beautiful to behold. Just as peaceful protests against police brutality are being met with more police brutality, parents advocating for remedies to address their children’s special needs are being met with more frequent and egregious violations now that the circumstances have changed in response to the pandemic.

Clearly, public safety is of paramount importance and I will never dispute that plain fact. But, public safety does not require the end of democracy, and I’m not talking about masks. Don’t be an idiot; wash your hands, wear a damn mask, and socially distance yourself from other people.

Public safety is equal in importance to the constitutional rights of children with disabilities, not greater. These children have a protected legal right to equal access to public education. Further, special education students have a protected right to individualized educational programs designed and delivered according to the peer-reviewed research (34 CFR Sec. 300.320(a)(4)).

Local government agencies performing according to their legal mandates is democracy in action. This pandemic is not so apocalyptical that certain classes of individuals suddenly cease to have legally protected rights. Fascism denies their rights, not a virus. Local education agencies refusing to perform according to their legal mandates is fascism in action.

Further, as I’ve previously reported here, none of the applicable federal laws have been waived as a result of the pandemic. States and local governments do not have the legal authority to waive the federal requirements; they can only describe with State law how the federal laws will be implemented within the State, and local education agencies can, at most, create policies about how they will individually comply with the State’s implementation requirements of the federal regulations.

No local school district has the legal authority to refuse to abide by the laws, particularly those that regulate its purpose and existence. Nothing could be more undemocratic – more fascist – than that.

And, yet, here we are with our most vulnerable children languishing and regressing developmentally with every passing moment because a bunch of “tax-fattened hyenas,” to quote the great Berke Breathed, saw fit to use the pandemic as an excuse to not expend public dollars on the members of the public for whom those dollars were intended, while continuing to collect six-figure annual salaries in exchange for nothing. This isn’t just a civil rights issue. Just like police reform, it’s a taxpayer issue.

What this pandemic has done, among other things, is expose every crack in every system throughout all our systems of governance. And, those cracks are the consequences of systemic non-compliance with regulatory mandates, as well as failures of those mandates to adequately describe courses of action that prevent non-compliance.

There is no proactive oversight of local education agency compliance with special education and related civil rights law; the burden falls to the shoulders of largely uninformed and/or unempowered parents to file complaints or litigate in order for the law to be enforced, which means it usually is not. It’s a matter of “When the cat is away, the mice will play.”

Without proactive oversight and enforcement, public agencies are adrift at sea, inventing their own ways of doing things while often unaware of their legal obligations. There is no real quality control in special education. There’s just school district lawyers who jump in after the train has already wrecked to argue that it really didn’t for ridiculous dollars per hour at taxpayer expense.

It’s one thing to point this stuff out. It’s another thing to do something about it. My thought process is that the IDEA is overdue for reauthorization. Presuming democracy is preserved with the upcoming election and we haven’t descended into dictatorship, there is going to be a lot of public agency and legal reform coming down the pike for the next 10 years, at least.

Historians, anthropologists, sociologists, and psychologists will all be looking at the last four years and what led up to the current state of affairs in our nation under a microscope for the next 100 years, at least. The data they will be generating will inform vast improvements to our social systems and create systems for ongoing improvement as our society evolves and encounters new challenges, so long as the rest of us make sure that happens.

Right now, one of the most powerful things that parents of children with special needs can do is vote for the candidates they believe will take action to make sure that our publicly funded government agencies actually perform according to the regulatory requirements and achieve the purposes for which they exist, including the application of valid science to the delivery of services intended to benefit the public good. Maybe then we can finally become the democracy we’re supposed to be.

Pandemic Era Special Ed.



This video is not a regular part of any of our YouTube or Patreon programming. It’s something that we just needed to put out there because there are a lot of parents looking for answers, right now, and we have at least some answers that can benefit many families of children with disabilities and an ethical obligation to share that knowledge.

This isn’t a short video, but that’s what the pause button is for. You can always save it and come back to it later to finish, if you need to. You can watch it once and save it in case you need to refresh your memory later on about something. It’s a tool to help parents still dealing with shutdown and distance learning involving their children with special needs.

We’re going to leave this up on our YouTube and Patreon channels, our Facebook page, and our blog for so long as it remains relevant because we expect a whole lot of families will be going online searching for answers throughout this current new school year as the pandemic continues to rage throughout the country. No one really knows how long it will be before the pandemic is brought under control, and we all have to be prepared for shutdowns to come and go periodically as flare-ups happen until it is finally reigned in. Right now, many areas are currently on shutdown, including many parts of California.

Mentioned in this video, are two reference items:

  • New California legislation and California Department of Education (CDE) guidance as to school districts’ duties under the law, as supplemented by the new legislation, including the provision of in-home, in-person special education services if they are necessary for students to receive a Free and Appropriate Public Education (FAPE) during shutdown: https://bit.ly/3jInffh
  • A recent stay-put order issued by California’s Office of Administrative Hearings (OAH) requiring in-person, in-home services to implement a student’s IEP during shutdown: https://bit.ly/3hZfnFA

Additionally, in the video, the procedures adopted by one school district to provide in-person, on-campus special education assessments during shutdown using appropriate safety protocols were referenced. They can be viewed here: https://bit.ly/3jOkycf

Also, the book, From Emotions to Advocacy, by Wrightslaw, was referenced during the video as an excellent resource for parents trying to keep their cool and work strategically as they advocate for their children with special needs. You can find it here: https://amzn.to/31WH0JV *

If you have questions about special education, including school closure-related concerns, please post a comment or email us at info@kps4parents.org. Find us online at https://kps4parents.org.

Facebook: https://facebook.com/KPS4Parents

Twitter: https://twitter.com/KPS4Parents

YouTube Special Education Quick-Fix Videos: https://bit.ly/2Z0951d

Patreon Channels: https://www.patreon.com/KPS4Parents

Anne’s t-shirt reads, “Science. Because figuring things out is better than making stuff up.” While we couldn’t find the exact same design, we found this great design with the same statement at: https://amzn.to/3i1d7xC *

* Note: Fundraising affiliate links are included in this post. KPS4Parents is a non-profit organization and funds raised are applied towards our costs of providing low cost and pro bono lay advocacy services to children with special needs and their parents who are unable to pay our regular hourly rate, which is billed at cost.

Donations can be made to https://paypal.me/learnandgrow.

Copyright 2020, KPS4Parents. All rights reserved.

USDOE Preserves the IDEA

It’s now official: There will be no waivers of the Individuals with Disabilities Education Act (IDEA) during any time of sheltering-in-place and resultant school closures. Thanks to the efforts of many people, most notably the Council of Parent Advocates and Attorneys (COPAA), a national non-profit professional and volunteer organization of advocates and attorneys, working with the United States Department of Education, (USDOE), Secretary Betsy De Vos determined that no part of the IDEA should be waived at this time.

This is important because it’s no secret that most students, just in general, are going to regress in their learning because of the sudden school closures, putting them behind relative to the grade-level standards. Special education students are even more vulnerable to regression, but only special education students have a legal right to assert demands for compensatory education to make up for regression.

This suddenly creates inequity in favor of the special education students with respect to compensatory education, when is an unexpected turnabout. It’s usually the other way around that the general education students have advantages over the special education students. What was originally meant to level the playing field for kids with special needs has now become an unfair advantage over the general education students with no enforceable right to compensatory education. That’s something that needs to be addressed and rectified.

The degree to which a court may reduce the amount of compensatory education due to a special education student in light of the need for sheltering in place remains to be seen. In my lay opinion, there is an obvious need for some leniency. None of this was within any public education agency’s control and its commendable how so many educators stepped up their game during this crisis and continue to give us their best.

There is no way I could possibly diminish from that. It moves me in my heart and gives me faith that we can all somehow pull it together for all of our students, regardless of how each of them learns, if we all just collectively put forth the effort.

There is also the matter of the “snapshot rule.” In special education litigation, it is commonly known among attorneys and paralegals that an IEP cannot be judged with the benefit of hindsight. It has to be judged according to what was known or should have been known during the time at issue. This requires the trier of fact to look at the period at issue as a “snapshot” of what was known or should have been known during that time.

Given the unprecedented unique nature of the sudden school closures, and the pre-existing lack of a contingency plan in the event of something like it, what was known or should have been known by public school officials will require an unprecedented degree of scrutiny. This is because unforgivable errors are being, and will continue to be, hidden among the forgivable ones, and a few bad apples are already seeking to exploit the situation to get away with things for which they would otherwise normally be more likely to get caught.

So, how the law will be applied to the facts in the months and years to come ahead is something only time will tell. Given how conservative our Supreme Court has become, there is still cause for concern as to how the law will be enforced. The innovations that are happening around the country in response to campus closures are inspiring and shaping our understanding of what is realistically practicable.

This is important because the federal regulations require the public schools to deliver special education according to the peer-reviewed science to the degree that it is practicable to do so. Those who are innovating in public education, right now, are establishing the education community’s professional standards with respect to practicability in many regards.

In the effort to determine what was reasonable, given what was known or should have been known in light of the evidence, the innovations being reported around the country by clever educators should have shown up in the research of any educator searching the internet for solutions. This goes to what should have been known.

I am the last person to advocate for litigation unless there is just no other way to resolve the problem. I’m thinking about these things from a preventative standpoint, considering the consequences of what will happen if IEP teams don’t work together to figure things out, now. I am trying to think ahead and consider what can be done to prevent worst-case scenarios.

My motivation is envisioning what the worst-case scenarios would look like. That prompts me to consider what would have to go wrong to arrive at those outcomes, then backwards-chain the process to basically reverse engineer it and come up with preventative strategies that will hopefully steer things in a better direction. So, I don’t want to be all doom and gloom, here.

I am happy to celebrate the champions in all of this, but we still have a lot of work to do. Everything we do right now to prevent regression will be heartache we spare everyone in the near future when school starts back up, again, in the Fall. I want to encourage everyone impacted by school closures to do everything they can to prevent educational regression in their students.

The generational Cohort Effect of this pandemic will be something that affects our species for generations to come. How history remembers our responses to these sudden changes in our world depends on our collective decisions in the present.

We’re going to have children who have lived in trauma for one reason or another throughout this period who will be re-entering our school system in need of supports that they would have not otherwise needed. Our kids already in the special education system are going to have more demanding needs upon their return. The more wisdom we can exercise today, the less regret we will have tomorrow.

Get to Know Our YouTube & Patreon Channels

In keeping with the times and the improvements in social media options that have come along with them, KPS4Parents has launched its own YouTube channel with a playlist specifically devoted to Quick-Fix videos that explain simple but important special education-related procedures, as well as broad overarching explanations of special education-related concerns.

These videos first launch on our Quick-Fix Video Archive on Patreon, ad-free, and are released two weeks later on YouTube for free (but with ads) for the next 30 days. Once they expire off of YouTube, the live on for so long as they remain timely and relevant on our Quick-Fix Video Archive on Patreon.

In addition to archiving our Quick-Fix videos on Patreon, we also offer another another tier that is driven by user input. Our Ask Anne tier is like an old-school advice column in which users submit their special education-related questions using our online form and our CEO, Anne Zachry, selects the best questions and answers them in each video.

Broad topics that are briefly addressed by our Quick-Fix Videos are further explored in more detail on The Nexus of Special Education Science & Law, our exclusive, advertiser free patron-supported video channel. The Nexus provides in-depth explorations of issues that involved inextricably intertwined matters of science and law, as they relate to the design and delivery of individualized education programs (IEPs) for public education students who are eligible for special education.

Our Patreon channel is supported by subscribers. This allows it to remain ad-free.

You can access our Quick-Fix videos right away on our Patreon channel and use them as tools to inform your own advocacy for so long as you remain a subscriber, or wait for them to come out for free on YouTube, albeit with ads, and have access to them for at least 30 days before they expire off of YouTube.

Our Ask Anne program and The Nexus of Special Education Science & Law are both exclusively on Patreon. These videos take more time and resources to produce and would not be something we could continue to do without our charitable donors and patrons.

You can donate to us by clicking on the donation button on this page. To subscribe to any of our Patreon channels, go to https://patreon.com/KPS4Parents.

USDOE’s COVID-19 Special Ed Guidance to State & Local Ed Agencies

The United States Department of Education (USDOE) has issued guidance to state and local education agencies regarding the implementation of IEPs and the provision of a FAPE during the current COVID-19 pandemic and resulting quarantines.

Click here to download the PDF.

The PDF includes links to other important resources, including the CDC’s guidance to schools regarding safety protocols. Much of the guidance provided by USDOE in its PDF mirrors what we’ve been saying all along.


Special Education Still Has to Be Individualized During Quarantine

During these unprecedented times of both urgency and delay, I’m finding that the ways in which I share relevant information with our audiences depends on the nature of the information that needs to be shared. Nuanced issues in which science and law become inextricably intertwined and live on as continuing issues, whether we’re in quarantine or not, remain appropriate for our Patreon patron-supported video channel, The Nexus of Special Education Science and Law, while time-sensitive updates and guidance to our audiences as to how to respond to various developments as they happen are more appropriate for our blog and corresponding podcast, Making Special Education Actually Work.

The reality is that producing the videos are way more involved than producing blog posts and podcasts. If we’re going to invest our limited resources into making a video, it has to address an issue that will remain an issue for some time to come and live a long and purposeful life before having to be replaced with a more current version. This is why our most involved video productions are only for our patrons on Patreon.

That’s fine for what it is. It’s highly technical stuff for a highly technical audience. Similarly, we have a podcast specifically for serious lay advocates to build their representation skills, but that is again highly specialized for a specific audience and patron-supported by its paying subscribers.

For information that is too time-sensitive to take days to be made into a decent video around my busy caseload and needs immediate attention from all our audience members for the sake of the general good, our regular blog posts and podcasts through Making Special Education Actually Work are much faster methods of getting the word out, and a great deal of that content is free. So, with all that in mind, today I find it necessary to use Making Special Education Actually Work serve as our most immediate method of getting the following information to the front lines as soon as possible. Some of my worst fears are being realized across my caseload and, presumably, across the country.

It’s necessary for me to remind everybody that special education is individualized to the unique needs of each student. Now, suddenly, hundreds of thousands of special education students have experienced radical changes to their educational programs that each require an individualized response. How they continue to make progress towards their IEP goals while sheltering in place must be individualized just like all the rest of their respective IEPs.

The scope of this issue is unprecedented. Suddenly, every kid in America on an IEP in a quarantined community needs an IEP meeting to modify their respective IEPs to fit the current circumstances. Conforming to the IEP timelines under the circumstances is going to be incredibly challenging for school districts and they may end up engaging in the educational equivalent of triage, figuring out who is at most risk of regression and allocating resources to those students first before moving on to the kids who are likely to recover lost educational benefits by way of compensatory services later on and aren’t at risk for as great an amount of regression as those that require the most immediate attention.

Chances are, the kids with the most costly and involved programs are going to be the ones most at risk of regression if their services get interrupted, so starting with those students is probably the most logical place to begin. These are also the cases in which local education agencies are most at risk of doing something that denies a Free and Appropriate Public Education (FAPE), simply because the needs of our most severely impacted students are so significant and any small exclusion can create significant harm, even if accidental.

The most severely impacted students tend to be a relatively small number and figuring out how to deliver individualized services to them that can be reasonably calculated to achieve their respective IEP goals can be resolved first, when the most flexibility among the available resources is necessary. Then, students with less intensive needs can follow, stepping down to the students with the least demanding special education and related service needs at the end of the process.

Trying to shoe-horn a student with severe special needs into a solution using whatever is left over after everyone else has picked the resources clean is discriminatory. Solving the hardest problems first also creates conduits through which other solutions can be implemented, making it easier to solve the more numerous less challenging tasks, and makes them even less challenging to solve. Local education agency dollars previously spent on facilities may need to be reinvested in technology, additional personnel, and plenty of Personal Protective Equipment (PPE), to keep up with the federal mandates to provide a FAPE to every eligible student.

How much leniency the various triers of fact will be willing to give to local education agencies in special education due process hearings and appeals over the two years that follow this pandemic will depend on the unique factors of each situation, including the reasons for any delays that occurred, as well as the unique needs of the student for which individualized responses were necessary but for which resources were not readily available. Regardless of how much leniency is reasonable under the circumstances, the expectation is still that a FAPE will be provided to each eligible student, in accordance with both Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA).

Congress did not build any specific contingency plans into the IDEA or Section 504 with respect to implementation during times of emergency, and certainly none that make it acceptable to suspend the protections offered by either Act. There is nothing that says these civil rights laws, or any other civil rights laws that protect people with disabilities, cease to be in force under any circumstances. They are in force at all times, even times such as now.

Anything less is humanity devolving into the Lord of the Flies, and there is absolutely no need for that, but advocates for people with disabilities are having to argue for equality in health care, right now, which is reprehensible! At this moment, the shortages of medical supplies in the areas most severely impacted by COVID-19 are forcing health care providers to decide who lives and who dies, just like in a war zone. The elderly and disabled are the least likely to receive life-saving care, at this point, and it’s unacceptable that our health care providers are being put in the position to have to think this way. Whether or not a person has autism should not determine whether or not they receive life-saving care.

We’re going to lose tens to hundreds of thousands of Americans unnecessarily because of the poor federal response to this situation since it first began. Disability and/or a complex medical history doesn’t automatically make a person unemployed or unemployable. We are losing great minds and true talents to this disease among younger individuals who were compromised by pre-existing conditions. Further, we’re losing people of all ages who had no pre-existing conditions at all, making the unfair distribution of resources in favor of those without disabilities even less justified.

The fact that we are having to actively enforce civil rights law through litigation and formal complaints with respect to access to healthcare during a global pandemic is disheartening. It means that, now more than ever, we can’t neglect the other areas in which civil rights violations against people with disabilities are also occurring, which includes special education. There has to be a unified voice on behalf of individuals with disabilities across all domains to stand firm on the civil rights protections that are already on the books and expect everybody else to also play by the rules. This is no time for anarchy.

With respect to individualized instruction and specialist services, I have to point out that very few students with significant special needs are going to benefit from online instruction. As medical supply production starts to ramp up, now that various industries are retooling their assembly lines to produce enough masks, gowns, latex gloves, etc., to keep all necessary personnel adequately protected and safe, it’s going to have to be accepted as fact that some students simply require in-person services in order to receive educational benefits under the current circumstances, and the staffs who need to provide such in-person services will require adequate protection to stay well and prevent the spread of disease.

Given the immediate shortage of PPE, it’s understandable that this time right now can probably best be used to lay the administrative foundation for how in-person special education services will be deployed once the protective equipment becomes available. But, it also means that many students will be due compensatory service minutes for any time lost, particularly if they are already showing signs of regression by the time in-person services finally start.

Given that states are deciding to close down their schools through the end of the Summer 2020 break and start again in the Fall of 2020, this is going to be a long-term temporary period of interim special education and related services that will have to be tailored to each individual student affected, just as it was supposed to have been done for each student in their normal school settings. If school districts move quickly and strategically enough, they can get something in place and make up lost service minutes before way too many compensatory service minutes are owed to each student.

The good news is that the only things that should have to be changed, provided the goals already tackle every area of unique student learning need and are written in a measurable manner, are services and placement. The goals shouldn’t change. The learning outcomes that the IEP has been pursuing shouldn’t suddenly become inappropriate because of a forced change in placement in response to a national emergency. The quarantine has nothing to do with whether a student’s IEP goals target appropriate learning outcomes.

If you are a parent doing an IEP meeting (by phone or video conference, please!) and somebody from the school suggests eliminating a goal or putting it on hold, don’t go for it. Your child didn’t suddenly experience a reduction in the need to learn what that goal targeted. If they’re trying to get rid of it, it’s because they are struggling to come up with an inexpensive way to teach or provide therapy to it and they don’t want to have to pay what it’s going to cost to legitimately pursue it, which is not cool. It’s also totally unlawful.

It is my sincere hope that public education agencies will respond to the needs of their special education students timely enough to prevent regression and the need for compensatory services as much as possible. The faster and smarter they move on this, the less responsible for compensatory education they will be. If the education agencies go straight to each child’s IEP goals and ask, “Given the limitations with which we are currently faced, what services are going to have to be delivered either in home or in some other 1:1 instructional situation in order to still see these goals met?” they’ll cut to the chase and be as efficient as anyone can be under the circumstances.

IEP teams don’t have to start over at the beginning. They just have to go back to the point where they are trying to decide what services are necessary to meet the goals and how they can be delivered in the placement options currently available. When this conversation was last had for each student on an IEP, the placement options were more plentiful, so that conversation fit what was then the context. But, the context has now changed, so IEP teams need to return to the services and placement portion of the IEP process to address the fact that placement options are now very limited and a fair amount of creativity is going to be needed to work around the limitations that are now imposed by this quarantine.

The current situation also requires school nurses to come up with health care plans to go into each student’s IEP and tailor them on a case-by-case basis for students with unique needs that may require hands-on support for medical equipment, physical positioning, hand-over-hand instruction, and other close contact instructional methods and support services for which PPE will be critically necessary. It is important to include guidance to anyone having to implement an IEP in person as to how to conform to appropriate safety practices in the health care plan section of each special education student’s IEP.

Now is the time for strategic thinking. It’s all hands on deck for those of us who have critical thinking and problem-solving skills, and some of us are way better at things like that than others. I gladly defer to those who can understand things that are way beyond me, like sophisticated mathematical models. We need to defer to those who come up with the most effective and efficient methods of meeting public agency obligations regardless of their titles or training. We need to be working collaboratively rather than competitively. All of us who are trying to make public education work, regardless of the roles we each individually play, have to keep the timbers of the system from being rent apart, right now.

I know one of my students is, thankfully, already receiving in-home instruction from a credentialed special education teacher supported by a Board Certified Behavior Analyst (BCBA) for three hours a day, using safety protocols as per the Centers for Disease Control (CDC). However, I also know another one of my students is sitting at home having one meltdown after another while her mother pointlessly tries to access Google Classroom in the absence of any special education instructional or behavioral support services.

These students need specialist supports and services from experts with advanced degrees. Almost no parents knows how to deliver this kind of highly specialized instruction. When it comes to specialist-provided related services, like speech/language services or occupational therapy (OT), parents are even more at a loss.

The educational needs of most special education students, because of their increased risk of regression during lengthy breaks from effective instruction, are as significant to their development as is their medical health. Particularly when you are talking about students with developmental disabilities, disruptions in routines and services are likely to lead to educational losses that will take time to recoup; the longer the period of disruption, the longer the period of recoupment.

Recoupment comes at the cost of new learning. Time spent relearning lost knowledge is time not spent learning new information. Regression and recoupment always mean a student falling even more behind same-grade peers, even after lost learning is recovered. Further, developmental windows of childhood development narrow and close as time goes on. When children miss developmental milestones because they are kept in deprived environments, it stunts their developmental growth and it is very difficult to overcome the knowledge deficits later in life.

There are adults everywhere today who are maxed out at Concrete Operations, according to Piaget’s Stages of Cognitive Development, and that’s enough to get them by for the most part, but they don’t understand big picture concepts and tend to subscribe to magical thinking when it comes to things they can’t deduce from direct observation of physical objects and phenomenon.

Adults like these may be very accomplished at things that involve the manipulation of tangible items, such as using tools to make and/or repair things, or representations of tangible items, such as visual computer models. But, try to get them to explain the differences between democracy and fascism, or love and need, and they can’t do it. These are abstract concepts that require a fully functional pre-frontal cortex, which they don’t have.

And, that is the kind of thing that has me worried about all the students doing some kind of home school thing during this quarantine. We have inexpert parents, the older bunch of which were raised during a time prior to the Common Core and without the types of cognitive stimulation that come with it.

I’m middle aged and I can remember that, in my early adult years, adult literacy was still a big deal. Illiterate but employed adults bemoaned the idea of employers requiring a high school diploma for a job like carpenter, cook, truck driver, or factory worker, which were the types of jobs that large numbers of Americans were pursuing and occupying at the time. A high school drop out could make a truly comfortable living plucking chickens at the local chicken plant, back when I was a teenager and young adult, especially if working the graveyard shift. That was $20 per hour back in the late 1980s.

So, when I say that there are parents out there who are ill-equipped to home school their children right now, I’m not just whistlin’ “Dixie.” There are still a fair number of people my age or close to it who grew up surrounded by adults with a gross under-appreciation of the value of education and now have school age kids or grand-kids for whom they are responsible. They may appreciate the value of a good education, but since they never got one, they don’t have the knowledge necessary to home-school their children.

And, that doesn’t even begin to take into account all of the dysfunctional parents with actively manifesting mental health issues, which can include drug and alcohol addiction, who are now stuck at home with their poor kids and expected to teach them skills they never mastered, themselves. How many of them are actively using in front of their kids to deal with the stress of this situation? How many of them have lost income because of the current circumstances, can’t afford to re-up, and are now experiencing withdrawals while stuck at home with their kids?

You add special needs on top of an already weak family system and then put that family unit through a quarantine made necessary by a global pandemic, and something bad is bound to happen. For a lot of these families, their kids going to school every day is good for everybody involved. It gets the kids away from toxic adult behaviors and around more appropriate role models during the majority of their waking hours, while giving their parents a break that can facilitate peaceable interactions later when the whole family unit is together. For those kids from difficult situations at home who also have special needs, school-based specialist services and individualized instruction can be their lifeline to a better future and they need that lifeline now more than ever.

To the degree parents can be effective parts of an IEP implementation team under the current circumstances, parent counseling and training as related services are going to become increasingly necessary. Whether it’s done online, in person, or a hybrid delivery model of both, the parent has to be trained on how to implement those portions of the IEP for which he/she can assume responsibility during quarantine, which is an IEP team decision. 34 CFR Sec. 300.34 lists parent counseling and training as a related service that can be provided by an IEP.

Qualified personnel will have to make up the balance of the IEP services that cannot be delivered by a parent in consultation with special education and related service personnel. It is not educationally appropriate to delegate 100% of the implementation of an IEP to an inexpert parent. Specialist personnel are still required in some capacity and that has to be determined on a student-by-student basis, just as with any other aspect of an IEP.

While the IDEA does not include a contingency plan specifically for pandemics, it does have rules that provide structure as to the outcomes public agencies are expected to achieve and the mechanisms by which they can be achieved, even as they adapt to ever-changing situations. Public education agencies are just having to rely on these rules and tools to respond in a way never before anticipated. The fact that we can keep these institutions going under the current circumstances speaks to the construction of the enforceable laws, the tenacity of the American people, and the collective belief of our majority in preserving our institutions.

This is not the worst that things could be, as bad as it is for some people, right now. The majority of us will survive the virus, though those of us who survive are likely to lose people we know before it’s over. It’s up to those of us who are not willing to descend into anarchy to continue enforcing the laws that make us who we are, even under these distressing circumstances. We’re needed now more than ever. Human lives, whether they are disabled or not, are worth more than money, and we need to make sure that message remains resoundingly clear in the times ahead to come.

Texas Education Agency Due Process Guidelines During the COVID-19 Pandemic

In light of the sheltering in place and social distancing currently underway around the country, including in Texas, the Texas Education Agency (TEA) has announced new policies and procedures for special education due process and mediation in these unprecedented times. You can see TEA’s posting at https://tea.texas.gov/about-tea/government-relations-and-legal/special-education-hearings/due-process-hearings.

What we did not find on the TEA site, at least not at the time of this post, are the individual notices that accompanied the email we received announcing these policy changes. They are as follows:.

Questions regarding special education mediation or due process hearings may be addressed to SE-Legal@tea.texas.gov.  Questions regarding the special education complaints process may be addressed to SpecialEducation@tea.texas.gov.

Prior Written Notice Requirements for Denying Parent Requests in Special Education Matters

Photo credit: Mary Cullen, instructionalsolutions.com

Prior Written Notice (PWN) pursuant to 34 CFR Sec. 300.503 gets a fair amount of general discussion among special education stake-holders, but, in today’s post/podcast, I want to look at it more in-depth. Today’s discussion looks more closely at the regulatory requirements and the types of special education contexts in which PWN becomes necessary.

I pulled a couple of examples from old case files that I can use to illustrate a number of points. These are old, closed cases from school districts where I currently have no active casework that happened years ago, but one of them involves bad players that I know are still out there.

The first one involved a student of an independent study charter school that had contracted with a third-party provider to deliver its special education and related services. Charter schools are often the worst at special education compliance, and online and independent study charters are usually the worst of the worst; for more information about that, see our prior post, “California Charter Schools & Special Education.” This case was no exception.

To put this example PWN into context, first I have to explain what was going on at the time. Our autistic student with high cognition also had debilitating anxiety that, combined with his autistic perseverative thoughts, could spiral his behaviors out of control, requiring intensive Board Certified Behavior Analyst (BCBA) services.

This student also needed interventions to address his anxiety, for which the parents, through me as their advocate from our agency, had requested a referral for a mental health evaluation as part of the IEP process. At the time, what we were requesting was provided by the local County Behavioral Health (CBH) agency under contract with the local Special Education Local Plan Area (SELPA), of which the chartering school district was a member.

So, while we were requesting a referral to the local CBH, it was under the auspices of an IEP-related assessment for the determination of IEP goals and services. In response, the third party special education contractor, using the local SELPA’s PWN form, replied with the following:

  1. Description of action proposed or refused by district: In a letter dated [DATE] and received by the charter on [DATE] the parents requested the school refer [STUDENT] to [CBH]
  2. Explanation of reason for proposal or refusal: Parents can make individual referrals themselves without the involvement of the school.

The PWN goes on to explain how parents can make their own community-based referral outside of the IEP process to the local CBH. In an effort to try and make it look like it was complying with the law by replying with official forms and filling in the blanks with words, what the charter’s third-party contractor actually did was commit a substantive violation of a Free and Appropriate Public Education (FAPE).

First of all, the request was for an IEP-related mental health evaluation and possible IEP goals and services. Going through the community-based referral process does not tie any mental health services provided to IEP goals and the delivery of a FAPE. Regardless of what our student may have or have not received by way of community-based mental health supports, none of that alleviated the IEP team from the mandated responsibilities of assessing for and providing any needed special education-related mental health services.

Further, the charter’s response on official SELPA forms was issued by its third-party contractor, which had no direct legal obligation to our student to offer and deliver a FAPE. The third-party contractor issued PWN on behalf of the charter, which was supposed to be acting on behalf of its chartering district, the latter of which being the entity that was actually legally responsible for FAPE but had no idea any of this was going on.

What this was really about was the charter’s third-party contractor not wanting any other entities involved over which it couldn’t exercise any kind of control. Because CBH would have been directly funded by SELPA and the State, the charter’s third-party special education contractor couldn’t lord payment over its head to control how it conducted itself like it did with its contracted teaching personnel and service providers.

If anything, it put the third-party contractor’s questionable conduct in the path of scrutiny to have an outside agency like the local CBH get involved. The third-party contractor denied the referral and pushed it back onto the parents in order to prevent CBH from becoming part of this student’s IEP and implementation teams. It was out of fear of accountability that the third-party contractor denied the referral and pushed it back onto the parents to pursue through community-based resources outside of the IEP process.

Measurable annual mental health IEP goals with the local CBH as the responsible provider would have likely meant CBH personnel in the home, where additional special education services of all kinds were needed but not being provided. Having CBH come on board to provide mental health services under this student’s IEP would have created outside, impartial witnesses to all of the other special education violations going on with this student’s case at the hands of the charter’s third-party contractor.

Adding CBH to this student’s IEP would have made the chartering district answerable for making sure the mental health goals were implemented as written, which would have required CBH to actually do its job, putting the third-party contractor’s scam operation at risk of exposure. Needless to say, this case ultimately went to a lawyer who filed for due process, the matter settled, and I can’t talk about what happened after that.

Prior to and at the time of settlement, this kid was in no way ready to enter the brick-and-mortar school setting, which is far less restrictive than being educated at home. This was one of those situations where the independent studies charter school kept insisting that the student’s living room was the general education setting because that’s how it was for all of their students, without regard for the fact that the only reason his living room was the Least Restrictive Environment (LRE) for him was because he couldn’t handle a traditional classroom.

If this student had been enrolled in a traditional school district at the time, but still was receiving instruction at home, it would have been regarded as one of the most restrictive placement options possible. His in-home placement was light years from a general education classroom in a brick-and-mortar setting, which everybody knew he couldn’t handle. It was a technicality that in-home instruction was the norm for independent studies charters, such as his. His situation wasn’t about family educational choice; it was about individual educational need.

Educating him at home was an accommodation. His parents would have preferred to send him to school, in all honesty, but they made the choice to home-school because of his demanding special needs. He needed intensive autism and mental health services to get to the point where he was able to access the world outside his home with success.

The charter was effectively trying to turn him into a well-educated hermit, which often seems to be the case with students with these types of needs in independent study programs. Bringing the instruction to students who are challenged to function successfully outside of the home may seem to be prudent, but if it doesn’t include related services meant to increase the student’s independence and access to less restrictive learning environments, it’s not a FAPE.

Preventing the provision of such services in order to avoid accountability is a despicable breach of ethics, as well as a monstrous denial of FAPE. First, in this case, the denial to refer for IEP-related mental health services as requested by the parents interfered with meaningful parent participation in the IEP process, in addition to violating procedure with respect to referrals for evaluations and reevaluations.

Secondly, it denied a FAPE because it meant the student’s IEP was informed by insufficient assessment data. As a matter of FAPE, the student had a federally protected right to assessment in all areas of suspected disability and learning need. That right was denied when the charter’s contractor chose to deny the mental health assessment referral and push the burden back onto the parents to pursue through community-based resources unrelated to the IEP process.

Further, the contractor’s efforts to circumvent the IEP process not only undermined meaningful parent participation in the IEP process as promised by federal law, it also meant that the student’s IEP was not reasonably calculated to render meaningful educational benefits in all areas of unique student need, which also denied a FAPE. As such, the student was being deprived of meaningful educational benefits in the areas of mental and emotional health, which was negatively impacting his behavior and, thus, access to education, which also denied a FAPE.

So, just on the basis of this misuse of an official PWN form, the charter’s third-party contractor made the record of its efforts to circumvent the IEP process, indirectly on behalf of its charter school client’s chartering district, thereby denying a FAPE in at least four different ways:

  1. Denial of meaningful parent participation in the IEP process
  2. Failure to assess in all areas of suspected disability
  3. Failure to design IEPs that are reasonably calculated to render meaningful educational benefits in all areas of unique student need
  4. Failure to deliver meaningful educational benefits in all areas of unique student need

The point I want to get across is that, just because you get a PWN on official paperwork, it doesn’t mean the education agency has actually followed the law. It’s not just the matter of complying with procedure by sending something out titled “Prior Written Notice.” What is written in the notice matters, and is regulated by federal law.

In my second example, also from years ago, and also ultimately settled after the family brought in an attorney, the situation was different. Our student had lived with his parents in the attendance area of a school district near the Southern border of California. Shortly before I became involved, this child’s mother had passed away, leaving his father alone to provide all of the in-home support his autistic son with demanding needs required while holding down a job as a traveling engineer.

As difficult as it was, the most sensible thing to do under the circumstances was for the student to live most of the week with his grandmother in another community far to the north in the San Joaquin Valley. The student’s grandmother, his late mother’s mother, was available to be a full-time primary caregiver and his uncle, his late mother’s brother, was available to help with any kind of important decision-making, such as with IEPs and regional center services. The student’s father shared his educational decision-making authority with his mother-in-law and brother-in-law so that they could take on these serious responsibilities.

In anticipation of the student moving to his grandmother’s and becoming a student of the local school district, his uncle went to enroll him and shared with the District the student’s IEP. The IEP from his incoming school district included a significant amount of Non-Public Agency (NPA) services that were provided during and outside of the school day because of the intensity of the student’s needs.

These services were not typical for most IEPs, but IEPs are supposed to be individualized. Based on the evidence it had at the time, the IEP team at his previous school district had determined that these services were necessary based on his unique circumstances to provide him with a FAPE.

The receiving school district nearly had a fit when it saw this student’s incoming IEP. It utilized every procedural tactic at its disposal to argue that it didn’t have to implement the incoming IEP as written. That’s one of the issues that was addressed by the settlement, so I can’t talk about it, here, which is a bummer because the legal arguments around this issue were total fireworks.

The bigger point that almost got lost over the arguments over procedure, which was likely the District’s intent by arguing over procedure, was what the student substantively required as a matter of FAPE. The receiving school district simply had no intention of paying for NPA services and insisted on stripping out all of the individualized supports described by the student’s IEP, which had him placed in a general education setting with age-typical language and behavior models, and placing him in a Special Day Class (SDC) for students with autism.

This student was mainstreamed with a 1:1 NPA behavior aide to keep him involved in the instruction and facilitate his language, social, and classroom behavior skills development. The receiving school district proposed to put him in a full-time classroom filled with other students with needs like his own and no models of age-typical language and behavior. He was being successful in his previous placement with the configuration of services described by his IEP.

The receiving school district had never met the student, much less assessed him, and therefore had no educational or legal basis to place him in a more restrictive setting. Regardless of whether procedure required the receiving school district to implement the incoming IEP as written or not, it was still obligated to offer and provide a substantively appropriate FAPE. It had no data to inform its offer of services and placement, and certainly nothing that suggested his needs had changed such that a more restrictive placement was educationally necessary.

After articulating the request for the receiving school district to implement the incoming IEP as written, this was the District’s response, crafted with the assistance of its attorney, as I understand it:

Description of the Action Proposed or Refused by the District

The [District] and [County Office of Education (COE)] are refusing to provide BCBA supervision of the BIP dated [Date]. The District and [COE] are denying the request for 1:1 instructional aide support to be provided by a NPA. The District and [COE] are also denying in home support, parent training, and direct speech and language services provided in the home. The District and [COE] continue to offer a [COE] operated special day classroom located at [Campus] as an interim placement for 30 days

Explanation Why the District Proposes or Refuses to Take Action

… you requested that [Student] be provided with a BCBA to oversee the BIP. The District and [COE] offered 60 minutes per month of consult behavior intervention services to address the implementation and training of the BIP … to be provided by a [COE] program specialist with … required training for Functional Behavioral Assessments (FBA) and BIP … the District and [COE] feel that the program specialist would be able to implement the strategies and recommendations of the BIP.

… you requested that a NPA provide the direct 1:1 instructional aide services. At the meetings, you indicated that the NPA instructional aide is essential to the successful implementation of the current IEP. The District and [COE] recommend intensive individualized services daily … Intensive individualized services are provided by [COE] instructional aides … The District and [COE] feel that [COE’s] trainings, in addition to the support and oversight provided by the program specialist, provide enough knowledge for [COE] to successfully support [Student] and fully implement the current IEP.

The District and [COE] are refusing to provide these additional services and continue to recommend 360 minutes per month of direct speech and language services and 30 minutes per month of consult speech and language services. Given that the in home services that are being requested are now embedded in the categorical program in a way that his prior placement in a non-categorical program did not provide, in home services are not needed.

So, that’s a lot, but here again is an example of a school district complying with procedure by sending a PWN, but, in doing so, making the record regarding its substantive denials of a FAPE. As stated previously, the receiving school district had conducted absolutely no assessments that indicated that this student needed to be placed in an SDC instead of supported in general education with push-in supports. This was an LRE case.

Basically, what the receiving school district was doing was making a placement decision on the basis of what it was willing to spend rather than what was necessary to educate the student in the LRE. The only guidance it had as to what the student required was the incoming IEP. It had no idea whether what it was offering as a 30-day interim placement would completely derail this kid or not (which it would have).

The language that jumped out at me that really chapped my hide were the statements about what “the District and [COE] feel” is best in the absence of any evidence. Basically, this was the District and COE admitting to basing their decisions on opinions rather than the facts that the regulations require.

It’s a violation of both the IDEA and Section 504 of the Rehabilitation Act to to change the type of placement a student with disabilities receives without first assessing to determine that student’s current placement needs. Placement decisions are based on what is the LRE in which the services can be rendered such that the goals are met. There was no data demonstrating that an SDC placement was suddenly the LRE for our student, after he had been successfully placed in general education with push-in supports under the IEP he already had.

Like I said, this case was ultimately settled and it happened several years ago. But, these kinds of things continue to go on all the time. I’m only citing old cases, here, because I don’t want to talk about anything currently being litigated or potentially litigated. The regulations for PWN have been the same for a long, long time, so there’s not some recent change in the law that would make older cases irrelevant.

As a parent, if you get a PWN in the mail denying a request you’ve made, don’t assume that the explanation you’re being given is a good one. Just because it’s on official letterhead or official form doesn’t automatically make it proper.

Really, it all boils down to 34 CFR Sec. 300.503(b)(2), which requires any PWN to include, “An explanation of why the agency proposes or refuses to take the action.” The explanation as to why a parent request is being denied better be a good one, or all the District accomplishes is using a procedural requirement to document its substantive denials of a FAPE on the record. If that’s the case, it’s evidence that parents can use in due process to achieve appropriate educational outcomes for their children with special needs.

IEP Goals Determine Services & Placement

If you’ve read or listened to our past posts and podcasts, or have otherwise been educating yourself on the special education process, hopefully by now you understand that special education is supposed to follow a particular procedural flow. This is not only the method supported by best practices, but also the method required by federal law.

To recap, assessment data provides the present levels of performance and baselines necessary to formulate educationally appropriate IEP goals for an individual learner. The goals describe what the IEP is supposed to make happen. Once the enormous milestone of developing the IEP goals has been achieved, then it’s time to figure out what services are going to be necessary and where they can be delivered in order for each goal to be met. This is where things can suddenly go off the rails.

It does no good to articulate sensible outcomes in measurable terms if effective services aren’t put into place to actually work on them and make them happen. Goals are just hopes if you don’t have a plan for the services you will need to meet them, and hope is not a strategy. But, this is often where things can get tricky in developing an IEP.

There are two common reasons for why things can go wrong at this stage: 1) everybody means well, but they don’t know what they’re doing; or, 2) something fishy is going on. In the first instance, it’s usually a matter of training. In the second instance, somebody is gaming the system in pursuit of an agenda in which the student is ancillary, but not the point.

In many instances, where this process gets tripped up actually starts with the development of the IEP goals. When the IEP goals are improperly written and/or necessary goals are excluded altogether, determining what services are necessary to deliver appropriately ambitious educational benefits to each student becomes compromised.

I’ve had many parents come to me over the years saying things like, “My kid needs more speech and language. He doesn’t know word meanings, can’t follow instructions, and can’t express himself, but he’s only getting 20 minutes of speech per week.” They look at increasing the service minutes in speech as though that’s going to somehow magically translate into working on all areas of his speech/language needs, when the real issue is that there is only one speech goal in the IEP for articulation and the rest of their child’s speech/language needs have no goals.

Because there are no goals for anything else, the number of speech/language service minutes is limited to how much time is reasonable to pursue the one goal that is there for articulation. 20 minutes per week to work on nothing but articulation isn’t automatically off-base.

What these parents really mean, when they say their kids need more speech and language services, is that the IEP is not targeting all of their speech/language needs. If that’s true, then the IEP team has to go back and look at the data to determine what other areas of speech and/or language should also be targeted by explicit intervention, then write goals to those specific areas of intervention need.

Once those new goals are written, the IEP team can then look at how many service minutes will be necessary to meet each goal. In addition to service minutes, which are expressed in terms of frequency and duration, the location of where the services will be delivered has to be determined.

It isn’t automatic that related services, like speech/language or occupational therapy (OT), get delivered in a pull-out setting. The location of services, like all other parts of an IEP, must be individualized to the unique needs of the student.

Pull-out services require the student to be removed from the classroom, often during instruction, and can interfere with learning. It’s a balancing act to find the right time to pull a student out of the regular class routine to go participate in direct pull-out services.

Push-in services bring the intervention into the student’s classroom and make it part of the classroom experience. Sometimes, this can be small group instruction with a reading specialist when the general education class is broken into small reading groups as a normal matter of instruction. This weaves the special education into the general education situation so that students with reading challenges are facilitated in participating with everyone else.

Embedded services are much like push-in, but they are intertwined with the instruction throughout the entire school day as a matter of instructional design for the classroom. An example of this would be embedded speech/language instruction and Applied Behavioral Analysis (ABA) in the program design of a school specifically for students with autism who cannot successfully function and learn on an integrated campus.

In this example, because it can be reasonably expected that all of the students in such a special school will need these supports according to the research and evidence-based practices, they are woven into the instructional design of the program. They are part of how the instruction is delivered on a continual basis.

In such cases, the integration of speech/language and ABA have to be used to describe the placement rather than parsed out as individual related service minutes, because they are part of the placement design that makes that particular placement appropriate for certain students. In this instance, they are not discrete services provided outside of or in addition to what is otherwise happening in the classroom.

Which leads into the next phase of the process, which is placement. Placement is the last decision to be made by the IEP team. There’s a really good reason for this. Placement is supposed to be determined by what is the Least Restrictive Environment (LRE) in which the services can be delivered such that the goals are met.

Special education is a service, not a place. The whole point of the IEP is to meet the IEP goals, but it is discrimination on the basis of handicapping condition to automatically remove kids from the general education setting for instruction just because they have disabilities. Unless removal to a more restrictive setting is the only way for the goals to get met, it’s not the LRE.

LRE is relative; what is restrictive for one student may be empowering for another. A student with autism who can nonetheless function in the general education setting with push-in ABA supports, for example, would be inappropriately placed in a school for students with autism.

Sometimes parents mistakenly think a special school is better because it’s focused on the specific types of needs their child has. But, it’s only better if the student cannot otherwise be successful in a less restrictive setting. Restrictiveness of setting is directly related to the severity of the student’s needs and the intensity of instruction necessary to meet the IEP goals.

Sometimes, creating an appropriately hybridized placement offer for a student who needs some pull-out services, but can otherwise participate in general education the rest of the school day, is such a difficult thing to coordinate in a particular school’s pre-existing culture that special ed staffs find it more convenient to put kids in more restrictive settings. This gives special ed staffs more control over the quality of the instruction and allows them to prevent their kids from being harmed by discriminatory general education practices, but it segregates their students on the basis of handicapping condition.

Sheltering students with disabilities from abuse by sequestering them from bigots inadvertently reinforces discriminatory practices that keep people with disabilities from equally accessing the world at large. Preventing the abuse of students with disabilities through diversity appreciation instruction, as well as proactive, research-based Positive Behavioral Interventions and Supports (PBIS) on a schoolwide basis, makes far more sense.

The LRE laws exist for this reason. Rather than sequester students with traits in common to prevent them from being bullied by the rest of the students, it is more appropriate to teach all of the students how to get along with each other. Appropriate programming results in general education students looking out for their peers with special needs rather than picking on them and mocking them. It facilitates unity in the school community.

Because LRE is relative to each student, no parent should go into the IEP process demanding a placement because somebody else’s kid got it and they’re doing great there. Somebody else’s kid is not your kid. You don’t base IEP placement decisions for your child off of what somebody else needs or gets; you base it on your own child’s unique, individual learning needs as targeted by the IEP goals.

Most school districts will tell you that the “continuum of placement” for special education is whatever they already have. That’s only partly accurate. What the school district already has is part of the continuum of placement, but if the placement the student needs doesn’t already exist within the district, the placement has to be outsourced or created.

It’s appropriate for the school district to describe the types of placements it already has. These can include, but are not limited to: general education placement with push-in supports; pull-out to a special education class and/or therapies for part of the school day for targeted specialized support, with placement in general education for the rest of the school day; full-time placement in a special education class; and placement for all or part of the day in a non-public school.

But students are not limited to the types of placements already put in place within a school district. Sometimes, the closest appropriate school is so far away that the child and a family member live in a nearby apartment or other local housing arrangement during the week and go home on weekends, with their local school district funding the housing and travel expenses as related transportation services in the student’s IEP. There’s caselaw around this issue in favor of students (see, for example, Ojai vs. Jackson).

There is no master list of all the “types” of placements that can be offered to a special education student. Like every other part of an IEP, placement is supposed to be tailored to the student, only with the LRE requirements relative to what services it will take to meet the goals in mind. Sometimes, IEP teams have to get creative to meet highly unique individual student needs.

Other times, the types of supports a student needs are relatively common such that there are entire classrooms that provide those kinds of supports to all of their students. Resource Specialist Program (RSP) services are the most commonly delivered special education services. These are the least intensive forms of special education services provided.

Most students on IEPs have relatively mild learning disabilities that make RSP support a useful tool in helping them maintain grade-level performance. They are usually mostly in the general education setting with some special education supports and plenty of them go on to college and successful careers.

Many of these students glide through the K-12 system with an IEP that no one knows about but their families and teachers. Most of their peers have no idea and their closest friends realize it’s no big deal and don’t care.

Further, it is becoming less stigmatizing to be on an IEP than it used to be, so students are being more forthcoming with their peers about their special education statuses, just as matters of fact, without judgment entering the picture. If only the adults could follow their lead.